“We make no apology for dwelling upon NA (Pakistan)”, state the Upper Tribunal in RA (s.117C: “unduly harsh”; offence: seriousness) Iraq  UKUT 123 (IAC) (4 March 2019) in a seeming mammoth judgement setting out, breaking down and applying the law relating to deportation of foreign nationals following the Supreme Court’s decision in KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent)  UKSC 53
For those who have over the years managed to keep a close eye on caselaw relating to deportation of foreign nationals, the Upper Tribunal judgment is a “welcome” reminder of already known caselaw and principles. Those yet to catch up, are encouraged to do so. There is no escaping the avalanche of caselaw.
To add to matters, the Upper Tribunal chose on the same day, 11 April 2019, to publish yet more caselaw on deportation: MS (s.117C(6): “very compelling circumstances”) Philippines  UKUT 122 (IAC) (4 March 2019). As per paragraph 1 of RA : “In this appeal and that of MS (s.117C(6): “very compelling circumstances”) Philippines  UKUT 00122 (IAC), which was heard consecutively, we consider how section 117C (Article 8: Additional considerations in cases involving foreign criminals) should be construed, following the judgment of the Supreme Court in KO (Nigeria) & Ors v Secretary of State for the Home Department  UKSC 53”.
Section 117C, Part 5A of the Nationality, Immigration and Asylum Act 2002 provides as follows:-
“117C Article 8: additional considerations in cases involving foreign criminals
(1)The deportation of foreign criminals is in the public interest.
(2)The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3)In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4)Exception 1 applies where—
(a)C has been lawfully resident in the United Kingdom for most of C’s life,
(b)C is socially and culturally integrated in the United Kingdom, and
(c)there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5)Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh
(6)In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted”,
The expression “unduly harsh” sets a high threshold and actual decision of the Upper Tribunal in MK (Sierra Leone) does not form part of any legal test
The Headnote in RA states:
“In KO (Nigeria) & Others v Secretary of State for the Home Department  UKSC 53, the approval by the Supreme Court of the test of “unduly harsh” in section 117C(5) of the Nationality, Immigration and Asylum Act 2002, formulated by the Upper Tribunal in MK (Sierra Leone) v Secretary of State for the Home Department  UKUT 223 (IAC), does not mean that the test includes the way in which the Upper Tribunal applied its formulation to the facts of the case before it”.
The Upper Tribunal started off in stating that in KO (Nigeria), Lord Carnwath, giving the judgment of the Court, first considered the effect of section 117B(6), which identifies the circumstances in which the public interest does not require the removal of a person who is not liable to deportation. Lord Carnwath was noted to have said this about section 117C:-
“20.Turning to section 117C the structure is not entirely easy to follow. It starts with the general rules (1) that deportation of foreign criminals is in the public interest, and (2) that the more serious the offence the greater that interest. There is however no express indication as to how or at what stage of the process those general rules are to be given effect. Instead, the remainder of the section enacts specific rules for two categories of foreign criminals, defined by reference to whether or not their sentences were of four years or more, and two precisely defined exceptions. For those sentenced to less than four years, the public interest requires deportation unless exception 1 or 2 applies. For those sentenced to four years or more, deportation is required “unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2”.
21.The difficult question is whether the specific rules allow any further room for balancing of the relative seriousness of the offence, beyond the difference between the two categories. The general rule stated in subsection (2) might lead one to expect some such provision, but it could equally be read as no more than a preamble to the more specific rules. Exception 1 seems to leave no room for further balancing. It is precisely defined by reference to three factual issues: lawful residence in the UK for most of C’s life, social and cultural integration into the UK, and “very significant obstacles” to integration into the country of proposed deportation. None of these turns on the seriousness of the offence; but, for a sentence of less than four years, they are enough, if they are met, to remove the public interest in deportation. For sentences of four years or more, however, it is not enough to fall within the exception, unless there are in addition “very compelling circumstances”.
22.Given that exception 1 is self-contained, it would be surprising to find exception 2 structured in a different way. On its face it raises a factual issue seen from the point of view of the partner or child: would the effect of C’s deportation be “unduly harsh”? Although the language is perhaps less precise than that of exception 1, there is nothing to suggest that the word “unduly” is intended as a reference back to the issue of relative seriousness introduced by subsection (2). Like exception 1, and like the test of “reasonableness” under section 117B, exception 2 appears self-contained.
23.On the other hand the expression “unduly harsh” seems clearly intended to introduce a higher hurdle than that of “reasonableness” under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word “unduly” implies an element of comparison. It assumes that there is a “due” level of “harshness”, that is a level which may be acceptable or justifiable in the relevant context. “Unduly” implies something going beyond that level. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent’s offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department  EWCA Civ 932,  1 WLR 240, paras 55, 64) can it be equated with a requirement to show “very compelling reasons”. That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more.
27.Authoritative guidance as to the meaning of “unduly harsh” in this context was given by the Upper Tribunal (McCloskey J President and UT Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department  UKUT 223 (IAC),  INLR 563, para 46, a decision given on 15 April 2015. They referred to the “evaluative assessment” required of the tribunal:
“By way of self-direction, we are mindful that ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.
On the facts of that particular case, the Upper Tribunal held that the test was satisfied:
“Approached in this way, we have no hesitation in concluding that it would be unduly harsh for either of the two seven year old British citizen children concerned to be abruptly uprooted from their United Kingdom life setting and lifestyle and exiled to this struggling, impoverished and plague stricken west African state. No reasonable or right thinking person would consider this anything less that cruel.”
This view was based simply on the wording of the subsection, and did not apparently depend on any view of the relative severity of the particular offence. I do not understand the conclusion on the facts of that case to be controversial.”
The Upper Tribunal in RA also stated as follows:
The Upper Tribunal reiterated that a result of KO (Nigeria), the position is that, in determining whether Exception 2 (in section 117C(5)) applies, a court or tribunal is not to have regard to the seriousness of the offence committed by the person who is liable to deportation. Importantly, however stated the Upper Tribunal, the expression “unduly harsh” sets a high threshold.
In seeking to articulate what is meant by “unduly harsh”, Lord Carnwath, in KO(Nigeria) approved the guidance given by the President of the Upper Tribunal in MK (Sierra Leone). That guidance must, accordingly, be followed
In RA, the Upper Tribunal noted that the written skeleton argument and oral submissions on behalf of the Appellant, submissions were made that the Upper Tribunal were obliged to adopt the same approach as in MK (Sierra Leone) to children aged at or around 7 and that the Upper Tribunal must likewise take “judicial notice” of the fact that children at this age are “at a critical stage of their development”. It was submitted that it was unnecessary and inappropriate for a tribunal to expect to see expert evidence on this matter, before making such a finding
The Upper Tribunal in RA rejected the submissions. Although the application of a legal test to a particular set of facts can sometimes shed light on the way in which the test falls to be applied, it is the test that matters. If this were not so, everything from the law of negligence to human rights would become irretrievably mired in a search for factual precedents.
It was considered that what might at first appear to be hard-edged findings of fact often turn out to be evaluative assessments. On analysing the relevant passages from MK (Sierra Leone), that was the position here. The Upper Tribunal’s conclusion that children aged 7 are at a “critical stage of their development” was such an assessment, based on the facts before it. It was not the laying bare of an obvious fact, of which any other court or tribunal must take “judicial notice”. One could envisage an equally valid argument that a child of 2 or 3 is at a critical stage of its development; or a child at or approaching puberty, and so on. Childhood is a developmental progression towards becoming an adult.
It was considered that in any event, RA’s submissions foundered when one read paragraph 46 of MK (Sierra Leone) in context. The Upper Tribunal in fact acknowledged that this was a “difficult and borderline case” and involved “an exercise bereft of bright luminous lines”. That was entirely right. The fact that the respondent may not have taken issue with the value judgment that the Tribunal reached in MK (Sierra Leone) did not mean that a differently constituted Tribunal, applying the test articulated in the first part of paragraph 46, could not lawfully have come to a different conclusion.
The actual decision of the Upper Tribunal in MK (Sierra Leone) does not form part of any legal test.
As could be seen from paragraph 27 of KO (Nigeria), the test of “unduly harsh” has a dual aspect. It is not enough for the outcome to be “severe” or “bleak”. Proper effect must be given to the adverb “unduly”. The position is, therefore, significantly far removed from the test of “reasonableness”, as found in section 117B(6)(b).
Approach in NA(Pakistan) to Section 117C reiterated & the test in section 117C(6) is extremely demanding
The Headnote in RA states:
“The way in which a court or tribunal should approach section 117C remains as set out in the judgment of Jackson LJ in NA (Pakistan) & Another v Secretary of State  EWCA Civ 662”.
The Upper Tribunal in RA stated that Lord Carnwath in KO(Nigeria)’s analysis of section 117C did not touch upon a very significant matter that arose in NA (Pakistan) v Secretary of State for the Home Department & Ors  EWCA Civ 662
On the face of the section, subsection (6) applies only in the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years. As the Court of Appeal explained in NA (Pakistan), the purpose of section 117C(6) is to ensure that, in every “foreign criminal” case, Part 5A of the 2002 Act does not operate in such a way as to cause a violation of Article 8. For this reason, section 117C(6) must be read as applying, not only to “four years or more” cases but also to those other foreign criminals sentenced to imprisonment for a period of less than four years (to which one must add the two categories referred to by Lord Carnwath: offence of serious harm/persistent offender).
Nothing in KO (Nigeria) casts doubt upon this important conclusion of the Court of Appeal in NA (Pakistan).
The Upper Tribunal stated that Jackson LJ in NA(Pakistan) set out the following important guidance on how to approach matters:-
“36.In relation to a medium offender, first see whether he falls within Exception 1 or Exception 2. If he does, then the Article 8 claim succeeds. If he does not, then the next stage is to consider whether there are “sufficiently compelling circumstances, over and above those described in Exceptions 1 and 2”. If there are, then the Article 8 claim succeeds. If there are not, then the Article 8 claim fails. As was the case under the 2012 rules (as explained in MF (Nigeria)), there is no room for a general Article 8 evaluation outside the 2014 rules, read with sections 117A-117D of the 2002 Act.
37.In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are “very compelling circumstances, over and above those described in Exceptions 1 and 2” as is required under section 117C(6). It will then be necessary to look to see whether any of the factors falling within Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6).”
Jackson LJ in NA(Pakistan) was noted to have addressed the relationship between section 117C and the jurisprudence of the European Court of Human Rights:-“
38. Against that background, one may ask what is the role of the Strasbourg jurisprudence? In particular, how does one take into account important decisions such as Űner v Netherlands (2007) 45 EHRR 14 and Maslov v Austria? Mr Southey QC, who represents KJ and WM, rightly submits that the Strasbourg authorities have an important role to play. Mr Tam rightly accepted that this is correct. The answer is that the Secretary of State and the tribunals and courts will have regard to the Strasbourg jurisprudence when applying the tests set out in our domestic legislation. For example, a tribunal may be considering whether it would be “unduly harsh” for a child to remain in England without the deportee; or it may be considering whether certain circumstances are sufficiently “compelling” to outweigh the high public interest in deportation of foreign criminals. Anyone applying these tests (as required by our own rules and legislation) should heed the guidance contained in the Strasbourg authorities. As we have stated above, the scheme of Part 5A of the 2002 Act and paras. 398-399A of the 2014 rules is to ensure compliance with the requirements of Article 8 through a structured approach, which is intended to ensure that proper weight is given to the public interest in deportation whilst also having regard to other relevant factors as identified in the Strasbourg and domestic caselaw. The new regime is not intended to produce violations of Article 8.”
Although decided prior to the judgment of the Supreme Court in Hesham Ali (Iraq) v Secretary of State for the Home Department  UKSC 60 which held that the Immigration Rules relating to deportation were not a “complete code”, Jackson LJ’s judgment in NA(Pakistan) remains authoritative as regards the matters set out. Indeed, the finding at paragraph 38 of Hesham Ali that “very compelling circumstances” means “a very strong claim indeed” chimes with what Jackson LJ said about the nature of the test.
Section 117C(6) applies to both categories of foreign criminals
The Headnote to RA provides:
“Section 117C(6) applies to both categories of foreign criminals described by Lord Carnwath in paragraph 20 of KO (Nigeria); namely, those who have not been sentenced to imprisonment of 4 years or more, and those who have. Determining the seriousness of the particular offence will normally be by reference to the length of sentence imposed and what the sentencing judge had to say about seriousness and mitigation; but the ultimate decision is for the court or tribunal deciding the deportation case”.
In RA, the Upper Tribunal stated that in MS (s.117C(6): “very compelling circumstances”) Philippines  UKUT 122 (IAC) (4 March 2019), they addressed in detail the submission advanced in that case; namely, that on a proper reading of paragraphs 20 to 22 of Lord Carnwath’s judgment in KO (Nigeria), section 117C(2) has no part to play in the process required of a court or tribunal by section 117C(6), other than as regards the distinction between the two categories identified by Lord Carnwath in paragraph 20 of KO (Nigeria). The Upper Tribunal did not accept that submission (which was not, in any event, advanced in RA). The consequence, therefore, was that in the case of any foreign criminal, a court or tribunal engaged in determining whether “there are very compelling circumstances, over and above those described in Exceptions 1 and 2”, will need to have regard to the seriousness of the offence.
As regards how a judge should approach that task it was noted that Simon LJ held in Secretary of State for the Home Department v Suckoo  EWCA Civ 39:-“In general, the facts of the conviction and sentence will be sufficient: matters of mitigation will be taken into account at the sentencing hearing.
On the other hand, given that the judge is not constrained to consider seriousness merely by reference to which of the two categories of “foreign criminal” the individual falls into, it will be necessary to determine the seriousness of the actual offence, within the category in question. This point emerges from the judgment of Singh LJ in Secretary of State for the Home Department v Barry  EWCA Civ 790, in which the decision of the First-tier Tribunal to allow the appeal of a foreign criminal was upheld:
“56. Ms Patry’s second submission under Ground 2 is that the FTT adopted an impermissible approach and/or gave weight to immaterial factors, namely the mitigation which it considered to be available to the Respondent and his expressions of remorse: see in particular paras. 102-122 of its determination; and the conclusions at paras. 154-155. Ms Patry submits that this involved an element of “double counting”, since the mitigating factors had already been taken into account by the sentencing judge in arriving at the appropriate sentence for this case.
57.I do not regard the approach of the FTT in this regard to have been impermissible as a matter of law. I do not agree that questions of mitigation are totally irrelevant to the balancing exercise which the FTT had to perform. Ms Patry is right to say that questions of mitigation will already have played their part in arriving at the appropriate sentence for the underlying offence. However, it must be borne in mind that the three categories which are set out in the Immigration Rules are broad categories. In particular, the most serious category applies to any offender who has been sentenced to a sentence of imprisonment of at least 4 years. However, that can cover a wide range of cases. Although they are all serious, they can vary in degrees of seriousness. The criminal courts in this country come across some examples of the most heinous kind, which would be towards the top end of the range envisaged by Category 1. However, in an appropriate case, I can see no reason in principle why either aggravating factors or mitigating factors might not be taken into account by the FTT in assessing the seriousness of the offence in question and, accordingly, the strength of the public interest in deportation. Similarly, in a case such as the present, which falls into the intermediate category of seriousness, because the sentence passed was between 12 months and 4 years imprisonment, I can see no reason in principle why aggravating or mitigating factors may not be taken into account by the FTT”.
The usual way in which the judge will assign the offence a place within the relevant category will be by reference to the length of sentence imposed and what the sentencing judge had to say about seriousness and mitigation. But, as Singh LJ makes clear, the ultimate decision is for the court or tribunal.
Relevance of rehabilitation as part of the section 117C(6) exercise
The Headnote to RA states:
“Rehabilitation will not ordinarily bear material weight in favour of a foreign criminal”
The Upper Tribunal noted in RA, that there was debate as to the significance to be accorded to the particular issue of rehabilitation, as part of the section 117C(6) exercise.
As the Court of Appeal pointed out in Danso v Secretary of State for the Home Department  EWCA Civ 596, courses aimed at rehabilitation, undertaken whilst in prison, are often unlikely to bear material weight, for the simple reason that they are a commonplace; particularly in the case of sexual offenders.
As a more general point, the fact that an individual has not committed further offences, since release from prison, is highly unlikely to have a material bearing, given that everyone is expected not to commit crime. Rehabilitation will therefore normally do no more than show that the individual has returned to the place where society expects him (and everyone else) to be. There is, in other words, no material weight which ordinarily falls to be given to rehabilitation in the proportionality balance (see SE (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 256, paragraphs 48 to 56). Nevertheless, as so often in the field of human rights, one cannot categorically say that rehabilitation will never be capable of playing a significant role (see LG (Colombia) v Secretary of State for the Home Department  EWCA Civ 1225). Any judicial departure from the norm would, however, need to be fully reasoned.
The operation and harshness itself in practice of the unduly harsh test is evident in the outcome in RA. RA, an Iraqi national lost his deportation appeal despite having a British child and wife in the UK. The Upper Tribunal reached the conclusion that, “ Overall, expecting the daughter to live in Iraq would not be unduly harsh, applying the test approved in KO (Nigeria)”, and, “If the appellant were deported, life for the appellant’s wife and the daughter would, we find, be hard. It would, however, be far from being unduly harsh”. The Upper Tribunal also concluded that, “ Notwithstanding those factors in favour of the appellant, we conclude that the weight of the public interest is such that it cannot be said that there are very compelling circumstances, as required by section 117C(6), which would make deportation a disproportionate interference with the Article 8 rights of the appellant, his wife, or daughter. That is so, looking at each of their positions both individually and together”.